Citation Nr: 0400751
Decision Date: 01/09/04 Archive Date: 01/22/04
DOCKET NO. 03-04 370 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
1. Entitlement to a rating in excess of 10 percent for a
medial meniscus tear of the right knee, for the period from
November 29, 1999, to December 16, 2002.
2. Entitlement to a rating in excess of 10 percent for
degenerative arthritis of the right knee, for the period from
November 29, 1999, to December 16, 2002.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
M. C. Graham, Counsel
INTRODUCTION
The veteran served on active duty from February 1971 to
February 1973.
The instant appeal arose from a March 2002 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO),
which granted an increased rating, to 10 percent, for a
medial meniscal tear of the right knee with arthritis,
effective September 26, 2000.
The veteran disagreed initially with the effective date of
the increased rating. In an August 2002 rating decision, the
RO granted an earlier effective date, to November 29, 1999.
As the veteran did not disagree further with the new
effective date, and as the veteran limited his February 2003
substantive appeal to the issue of entitlement to an
increased rating for his knee disabilities, and as there is
no other document in the record which could be considered a
timely substantive appeal as to the earlier effective date
issue, the Board of Veterans' Appeals (Board) will not
address that issue in this decision. 38 C.F.R. §§ 20.202,
20.302 (2003); Roy v. Brown, 5 Vet. App. 554 (1993).
The facts of this case can be distinguished from Gonzalez-
Morales v. Principi, 16 Vet. App. 556 (2003) and Rowell v.
Principi, 4 Vet. App. 9 (1993) where the United States Court
of Appeals for Veterans Claims (CAVC or Court) indicated that
the failure to file a timely substantive appeal does not
deprive the Board of jurisdiction. In Gonzales-Morales and
in Rowell, the Court found that the veteran had filed
documents subsequent to the SOC which indicated his desire to
appeal the contested issues. Such is not the case here.
Although the Board is aware that the RO continued to list the
earlier effective date claim in subsequent correspondence,
neither the veteran nor his representative made further
references in the record to this claim after the earlier
effective date of November 29, 1999, was awarded.
The August 2002 rating decision also granted a separate 10
percent rating for arthritis of the right knee. Thereafter,
a March 2003 rating decision assigned a 100 percent
evaluation for the right knee from December 17, 2002. This
total evaluation remains in effect. As a 100 percent rating
is considered a full grant of the increased rating on appeal,
the Board will only address the increased rating claims for
the period prior to the effective date of the total rating,
that is, from November 29, 1999, to December 16, 2002.
The Board further notes that the veteran withdrew a claim for
service connection for a left knee disorder in March 2003
correspondence. 38 C.F.R. § 20.204 (2003).
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The veteran has asserted that increased ratings are warranted
for his service-connected right knee disabilities.
The veteran indicated on a June 2001 VA Form 21-4142 that he
completed in connection with this claim that he had received
treatment from a number of private medical providers. A
review of the claims folder reveals that in several cases the
records have not been requested from the care providers, and
in one instance, the records were only requested once. In
light of these findings, the Board believes that further
efforts to develop this evidence must be undertaken prior to
making a decision in these claims. See 38 U.S.C.A. § 5103A
(West 2002).
Therefore, the case is REMANDED to the RO for the following
action:
1. The RO should make reasonable efforts
to obtain the veteran's records developed
at the following facilities:
(1) Dr. Roger Warren, Hanover
Hospital, Hanover, KS 66945;
(2) Nebraska and Western Iowa
Healthcare Systems, 600 S. 70th St.,
Lincoln, NE, 68510-2493;
(3) Dr. John Ryan & Dr. Randal
Brown, Community Physician's Clinic,
1902 May St., Marysville, KS 66508;
and
(4) Dr. Fred Hathoway, 1919 S. 40th
St., Lincoln, NE
If the search for any of the mentioned
records has negative results, the claims
file must be properly documented and the
veteran informed as to the unavailability
of these records, the efforts VA has
made, and any further action VA intends
to take with regard to the increased
rating claims.
2. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act (VCAA) is
completed, including statutory amendments
to the VCAA notification provisions found
in the Veterans Benefits Act of 2003,
Pub. L. No. 108-183, § 701, 117 Stat.
2651, 701 (Dec. 16, 2003) (to be codified
at 38 U.S.C.A. § 5102).
3. After completion of the above, the RO
should readjudicate the issues of entitlement
to increased ratings for a medial meniscus
tear and arthritis of the right knee from
November 29, 1999, to December 16, 2002.
Then, the RO should issue an SSOC to the
veteran on these issues. The veteran and his
representative should be given the
opportunity to respond thereto. Thereafter,
the case should be returned to the Board for
further appellate consideration, if otherwise
in order.
The purpose of this remand is to accord due process of law.
The Board intimates no opinion, legal or factual, as to the
ultimate disposition warranted in this matter. The appellant
has the right to submit additional evidence and argument on
the matters the Board has remanded to the RO. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
2002) (Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs to provide expeditious handling of all cases that have
been remanded by the Board and the Court. See M21-1, Part
IV, paras. 8.43 and 38.02.
_________________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(2003).